Key points
- A conspirator need not intend to play an active part in the agreed course of criminal conduct, he can intend to participate passively through consent
- Liability for conspiracy is limited to the intended consequences of the defendant’s action
Facts
- Ds were charged under s1 Criminal Law Act 1977 with conspiracy to contravene s170(2) Customs and Excise Management Act 1979 by smuggling cannabis (count 1) and heroin (count 2) into the UK
- Under s170(2) of the 1979 Act, the substantive offence for smuggling can be made out without knowing exactly what item was being smuggled
- Ds appealed on the basis that on count 2, conspiracy to import heroin, it must be proven that there was an agreement to import heroin and an agreement to import cannabis would not be sufficient
Held (Court of Appeal)
- Appeal dismissed
- An agreement to import heroin could not be proved by an agreement to import cannabis
- In his summing up to the jury the judge had made it quite clear that count 1 required proof of an agreement to import cannabis and count 2 heroin
O’Connor LJ
A defendant can intend participate actively or passively in a conspiracy
- O’Connor LJ addressed Lord Bridge’s statement in Anderson that a person guilty of conspiracy must have ‘intended to play some part in the agreed course of conduct’
- ‘Lord Bridge cannot have been intending that the out would not himself be guilty of conspiracy unless it could be proved that he intended to play some active part himself thereafter’
- ‘Participation in a conspiracy is infinitely variable: it can be active or passive.’
- Consent is proven by: 1. Knowing what was going on and 2. Failure to stop the unlawful activity
Liability for conspiracy is limited to the intended consequences of the defendant’s action
- “The mens rea sufficient to support the commission of a substantive offence will not necessarily be sufficient to support a charge of conspiracy to commit that offence. An intent to cause grievous bodily harm is sufficient to support the charge of murder, but is not sufficient to support a charge of conspiracy to murder or of attempt to murder.”
Commentary
O’Connor LJ gave examples of passive forms of participation in a conspiracy
- ‘the organiser of a crime who recruited others to carry it’ but had not ‘intended to play some active part himself thereafter’
- ‘If the majority shareholder and director of a company consents to the company being used for drug smuggling carried out in the company’s name by a fellow director and minority shareholder, he is guilty of conspiracy.’